Hucul Adver., LLC v. Charter Twp. of Gaines, Mun. Corp.

• Decision Date: 05 February 2014
• Docket Number: No. 12–2343.,12–2343.
• Citation: 748 F.3d 273
• Parties: HUCUL ADVERTISING, LLC, a Michigan limited liability comparny, Plaintiff–Appellant, v. CHARTER TOWNSHIP OF GAINES, a Michigan municipal corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

748 F.3d 273

HUCUL ADVERTISING, LLC, a Michigan limited liability comparny, Plaintiff–Appellant,

v.CHARTER TOWNSHIP OF GAINES, a Michigan municipal corporation, Defendant–Appellee.

No. 12–2343.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 3, 2013.

Decided and Filed: Feb. 5, 2014.^*

ARGUED:Steven F. Stapleton, Miller Canfield, Grand Rapids, Michigan, for Appellant. Craig R. Noland, McGraw Morris PC, Grand Rapids, Michigan, for Appellee. ON BRIEF:Steven F. Stapleton, Miller Canfield, Grand Rapids, Michigan, for Appellant. Craig R. Noland, William L. Henn, Smith Haughey Rice & Roegge, Grand Rapids, Michigan, for Appellee.

Before BOGGS, SILER, and CLAY, Circuit Judges.

BOGGS, Circuit Judge.

This case concerns the constitutionality of a zoning ordinance that regulates the construction of billboards. Hucul Advertising, LLC, sought permission to construct a billboard on its property in the Charter Township of Gaines, in Michigan. The Township denied Hucul's application on the ground that the proposed billboard would violate Chapter 17 of the Gaines Township Zoning Ordinance, which regulates signs within the Township's boundaries. The ordinance at the time permitted billboards only on property that was “adjacent” to the M–6 highway right-of-way, and Hucul's property did not satisfy the adjacency requirement. Hucul then submitted an application to build a digital billboard on the property. That application was also denied, as the property was not adjacent to the M–6, and the proposed digital billboard would be located within 4,000 feet of another digital billboard, which was also a violation of the applicable zoning ordinance. Hucul then applied to the Zoning Board of Appeals (“ZBA”) for relief, seeking approval to install a digital billboard, which the ZBA denied. The Township subsequently amended the ordinance's adjacency requirement to also require that any proposed billboard be built within 100 feet of the M–6 and to clarify that, in order for a parcel to be adjacent to the M–6, it must “abut and have frontage on the M–6.”

Hucul sued the Township in state court, challenging the ZBA decision, and claiming, inter alia, that the zoning ordinance violated the First Amendment, that the Township violated Hucul's civil rights by enforcing the ordinance, and that the Township violated the Equal Protection Clause by treating land adjacent to public property differently from land adjacent to private property. The Township removed the case to federal district court, and the district court granted summary judgment to the Township on all issues. Hucul appeals, maintaining that the billboard regulations violate the First Amendment and the Equal Protection Clause, and arguing that the district court improperly exercised supplemental jurisdiction over the ZBA appeal.

We hold that the 4,000–foot spacing requirement for digital billboards constitutes a valid “time, place, and manner” restriction on speech. Since Hucul's proposed digital billboard does not satisfy this requirement, Hucul would not be entitled to relief even if its objections to the adjacency requirements had merit. Accordingly, we need not consider whether the adjacency requirements violate either the First Amendment or the Equal Protection Clause. With regard to Hucul's jurisdictional claim, we hold that the district court did not abuse its discretion in exercising jurisdiction over the ZBA appeal.

I

We review a district court's grant of summary judgment de novo. Frazier v. Honda of Am. Mfg., Inc., 431 F.3d 563, 565 (6th Cir.2005). Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The question is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When ruling on a summary-judgment motion, a court must draw all reasonable inferences from the evidence in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

We review for abuse of discretion a district court's decision to exercise supplemental jurisdiction over state-law claims. Blakely v. United States, 276 F.3d 853, 860 (6th Cir.2002). “An abuse of discretion exists only when we are left with the definite and firm conviction that the district court made a clear error of judgment in its conclusion upon weighing relevant factors.” Veneklase v. Bridgewater Condos, L.C., 670 F.3d 705, 709 (6th Cir.2012) (citations and internal quotation marks omitted).

II

A

Hucul argues that the district court erred in holding that the 4,000–foot spacing requirement for digital billboards did not violate the First Amendment. In particular, it claims that the requirement is an impermissible restriction on commercial speech.

We must first decide what test to apply to determine whether the ordinance violates the First Amendment. Hucul argues that the district court erred in applying the “time, place, and manner” test for content-neutral restrictions on speech, instead of the Central Hudson test for restrictions on commercial speech. Pl's Br. at 16; see Clark v. Cmty. for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984); Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Under the “time, place, and manner” test, restrictions on speech “are valid provided [1] that they are justified without reference to the content of the regulated speech, [2] that they are narrowly tailored [3] to serve a significant governmental interest, and [4] that they leave open ample alternative channels for communication of the information.” Prime Media, Inc. v. City of Brentwood, Tenn., 398 F.3d 814, 818 (6th Cir.2005) (quoting Clark, 468 U.S. at 293, 104 S.Ct. 3065). Under the Central Hudson test,

we must (1) determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether (2) the asserted governmental interest is substantial. If both inquiries yield positive answers, we must (3) determine whether the regulation directly advances the governmental interest asserted, and (4) whether it is not more extensive than is necessary to serve that interest.

Bench Billboard Co. v. City of Toledo, 499 Fed.Appx. 538, 543 (6th Cir.2012) (internal alteration marks omitted) (quoting Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343),cert. denied,––– U.S. ––––, 133 S.Ct. 1252, 185 L.Ed.2d 181 (2013).

Hucul asserted its claim below under the Central Hudson test, arguing that the challenged ordinance regulates commercial speech. The district court, however, analyzed Hucul's claims under the “time, place, and manner” test, on the ground that the challenged ordinance is content-neutral on its face, i.e., it does not purport to regulate commercial speech only, nor does it distinguish between commercial and non-commercial billboards. On appeal, Hucul continues to argue its claim under the Central Hudson standard. The Township cites both tests in its brief but does not argue for the use of one or the other; rather, it simply responds to Hucul's arguments under the Central Hudson test.

As a practical matter, the choice of which test to apply makes little difference here: the two tests impose similarly demanding levels of “intermediate scrutiny,” Bench Billboard Co. v. City of Covington, 465 Fed.Appx. 395, 404 (6th Cir.2012), and, as relevant to this dispute, both tests impose similar requirements: under the “commercial speech” test, the restrictions must “directly advance” a “substantial” governmental interest, whereas under the “time, place, and manner” test, they must be “narrowly tailored” to a “significant” governmental interest.¹ In any event, we agree with the district court that the appropriate test here is for “time, place, and manner” restrictions on speech. We have held that, where an ordinance regulates both commercial and non-commercial speech and does not differentiate between the two, the application of time, place, and manner scrutiny is appropriate. Id. at 405 (“ Central Hudson's form of intermediate scrutiny is not appropriately applied to content-neutral ordinances that regulate both commercial and non-commercial speech).” (citing Cleveland Area Bd. of Realtors v. City of Euclid, 88 F.3d 382, 386 (6th Cir.1996)); see also Prime Media, 398 F.3d 814 (applying the “time, place, and manner” test to analyze the constitutionality of size and height restrictions for billboards); Prime Media, Inc. v. City of Franklin, Tenn., 181 Fed.Appx. 536 (6th Cir.2006) (same). Accordingly, we evaluate the ordinance under the “time, place, and manner” test.

B

As background, we note that “[b]illboards and other visual signs ... represent a medium of expression that the Free Speech Clause has long protected.” Prime Media, 398 F.3d at 818. At the same time, “they ‘pose distinctive problems' that also have long been subjected to the ‘police powers' of States and cities because billboards and signs ‘take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.’ ” Id. (quoting City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994)). We analyze the spacing requirement for digital billboards in that context.

To constitute a valid restriction on the time, place, and manner of speech, a restriction must first be “justified without reference to the content of the regulated speech.” Clark, 468 U.S. at 293, 104 S.Ct. 3065. To determine whether a regulation is content-neutral, we ask ...